NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted May 15, 2013
On appeal from the Superior Court of New Jersey, Law Division, Hudson County, Indictment No. 08-10-1940.
Joseph E. Krakora, Public Defender, attorney for appellant (Andrew J. Shaw, Designated Counsel, on the brief).
Gaetano T. Gregory, Acting Prosecutor of Hudson County (Stephanie Davis-Elson, Special Deputy Attorney General/Acting Assistant Prosecutor, on the brief).
Before Judges Parrillo and Sabatino.
Defendant Larry Hill appeals from an order of the Law Division denying his petition for post-conviction relief (PCR). We affirm.
A thirty-count indictment charged defendant with various drug crimes, weapons offenses, aggravated assaults, eluding a law enforcement officer and resisting arrest. Pursuant to an agreement negotiated with the State, defendant pled guilty to second-degree possession of a handgun after having been convicted of robbery, N.J.S.A. 2C:39-7(b)(1) (count three); second-degree aggravated assault (attempt to cause serious bodily injury), N.J.S.A. 2C:12(b)(1) (count five); and third-degree possession of a controlled dangerous substance with intent to distribute within 1, 000 feet of a school zone, N.J.S.A. 2C:35-5(a)(1) and 2C:35-7 (count twenty-eight). In accordance with the terms of the plea bargain, defendant was sentenced to a five-year term with five years of parole ineligibility on count three; an eight-year term with eighty-five percent parole ineligibility on count five; and a five-year term with three years of parole ineligibility on count twenty-eight, with each sentence to run concurrent to the others and concurrent to a violation of parole defendant was then serving. The remaining counts of the indictment were dismissed as provided in the plea agreement.
We affirmed the judgment of conviction on our Excessive Sentencing Oral Argument (ESOA) calendar. The Supreme Court denied defendant's petition for certification. State v. Hill, 204 N.J. 39 (2010).
Defendant filed a timely PCR petition in which he alleged ineffective assistance of counsel. The sole basis for his claim at the time was that counsel failed to argue that defendant was entitled to jail credits for the eight months he was incarcerated between arrest and sentencing. The PCR judge denied the petition, finding the claim procedurally barred under Rule 3:22-4 as one capable of being raised on direct appeal, as well as substantively without merit. As to the latter, the PCR judge concluded:
However, [defendant] was not entitled to credit for custodial time while awaiting sentence since he already had a parole warrant lodged against him. See State v. Harvey, 273 N.J.Super. 572 (App. Div. 1994). As the record shows, at the time of sentencing[, ] defense counsel acknowledged that [defendant] was not entitled to the eight additional months but still directly requested this court to consider granting the time. (Sentencing transcript, 3:11-17). Thus, defense counsel cannot be said to have been ineffective for failing to put forth any further arguments on this issue.
On appeal, defendant raises the following issues:
I. THE PETITION SHOULD BE GRANTED BECAUSE SUFFICIENT FACTUAL BASES WERE NOT ELICITED FROM DEFENDANT AT THE PLEA ...